[Voice mail to the Institute:] This is Patrick Syring. I just read James Zogby's statements online on the MSNBC website, and I condemn him for his anti-Semitism and anti-American statements. The only good Lebanese is a dead Lebanese. The only good Arab is a dead Arab. Long live the IDF. Death to Lebanon and death to the Arabs.

[E-mail to two Institute employees; all e-mails sent to work addresses:] Zogby's anti-Semitic, anti-American statements (and those of the AAI in general) are abhorrent, repulsive and disgusting. The only good Lebanese is a dead Lebanese (as the IDF knows and is carrying out in its security operations, God bless them.) Fuck the Arabs and Fuck James Zogby and his wicked Hizbollah brothers. They will burn in hellfire on this earth and in the hereafter.

[Voice mail to an Institute employee:] Hello Valerie, you fucking Arab American shit. James Zogby and you are all Hezballah supporters. The only good Arab is a dead Arab... You God [inaudible] bitch.

[E-mail to an Institute employee:] You are a fucking anti-Semitic Arab-American stooge who sympathizes with Hezballah terror. You and your Arab American Institute fuckers should burn in the fires of hell for eternity. The IDF is bombing Lebanon back into the stone age where it belongs. Arabs are dogs. Long live the State of Israel. Death to Arab American terrorists. The only good Lebanese is a dead Lebanese.

[E-mail to an Institute employee:] You are a fucking Arab American terrorist, a Hezbollah sympathizer pig. James Zogby is a vile evil anti-Semitic pig terrorist member of Hezbollah who is attempting to destroy the State of Israel. God Bless America[.] God Bless the State of Israel[.] The only good Lebanese is a dead Lebanese [a smiley face graphic]

[Voice mail to the Institute:] Hello, I'm Patrick I'm in Arlington VA, and I think James Zogby is worse than Osama bin Laden. Since he supports Hezballah, he's an anti-Semitic motherfucker, and the only good Arab is a dead Arab.

[E-mail to several Institute employees:] I condemn James Zogby and the AAI for perpetrating the murder and shootings at the Jewish Federation in Seattle on Friday July 28 (as well as the killings in Israel). You wicked evil Hezbollah-supporting Arabs should burn in the fires of hell for eternity and beyond. The United States would be safer without you. God Bless the State of Israel[.] God Bless America[.]

It seems to me that the messages are indeed punishable, precisely because they fall into the "true threats" exception to the First Amendment. But it's important to be precise about why this is so, and to see why this differs from protected statements that some people will burn in Hell, that some people (e.g., exploiters of the poor, abortion providers, child rapists) deserve to die, or that the capitalist stooges will be the first up against the wall when the revolution comes. Consider, by way of analogy, the Arizona Supreme Court's unanimous and correct decision in Citizen Publishing Co. v. Miller, 115 P.3d 107 (Ariz. 2005), that this letter to an Arizona newspaper was constitutionally protected:

We can stop the murders of American soldiers in Iraq by those who seek revenge or to regain their power. Whenever there is an assassination or another atrocity we should proceed to the closest mosque and execute five of the first Muslims we encounter.

After all this is a "Holy War" and although such a procedure is not fair or just, it might end the horror.

Machiavelli was correct. In war it is more effective to be feared than loved and the end result would be a more equitable solution for both giving us a chance to build a better Iraq for the Iraqis.

Here's my thinking: First, though the Syring messages are at times simply condemnation, and though "The only good Arab is a dead Arab" may in context be seen as chiefly a reference to what should be done in Lebanon in the Hezbollah War, it may also in context be seen as a personal threat to the recipients in particular.

Second, while ambiguity might cut in favor of protection in some contexts — consider the Arizona court's statement that "Given the letter's conditional nature and ambiguity, we do not believe that a reasonable person could view that letter as 'a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals'" — two related matters cut against this here:

(A) This was a letter addressed to particular people, which may reasonably make those people fear that they are in the writer's metaphorical crosshairs.

(B) The letter was sent just to those people, who were extremely unlikely to be persuaded or enlightened by the letter. The value of the letter to public debate — and the danger to public debate of punishing ambiguous statements — is thus considerably less than if it were a condemnation of Arabs or other large groups published to the public at large, which might have its views changed (whether we think in a morally sound or unsound direction) by such arguments as the letter may contain.

My sense is that these points, and especially (B), have to be a big part of the distinction between a punishable threat and protected advocacy. The Arizona court put this in a somewhat conclusory fashion, by saying that "Speech that is part of this sort of public discourse [newspaper publication] is far less likely to be a true threat than statements contained in private communications or in face-to-face confrontations." But it seems to me that a deeper analysis would reach the same result. Threats communicated privately to particular people are both more likely to be reasonably seen as individually threatening, and can be punished with less loss to public debate. (There are of course intermediate fact patterns, such as threats that mention particular people but are said in public, which I think should probably also be punishable, at least if they are relatively unambiguous. But here we have one end of the continuum, with the Arizona letter being the other.)

So Syring's letters — assuming the indictment provides the correct transcriptions, and doesn't omit important context — ought to be punishable. But it's important that any published decision upholding such punishment, or any public or legal consensus that emerges upholding such punishment, especially for ambiguous statements such as these ones, focus on the individualized nature of the threat (both that it mentioned individuals and that it was communicated to individuals). The analysis should be quite different if the statements were general, and distributed to the public at large, as in the Arizona case; the statements would still be morally reprehensible, but they should still be constitutionally protected.